Two different states of justice

28 August 2011 — 2:00pm

It is less than a year since both NSW and Victoria saw the winning of government by the Liberal/National Coalitions over the incumbent Labor governments, but there are already clear signs of these new governments moving in quite different directions as far as the administration of justice is concerned.

In NSW in March 2011 the conservative Government came to power with a primary vote of 64.2per cent of the vote and 69 seats in a lower house of 93 seats, whereas in Victoria the new conservative Government in November 2010 only narrowly won the election with 51.6per cent of the vote and 45 seats in a lower house of 88 seats. One victory was overwhelming while the other was by the smallest of margins.

Another major difference between the two state elections was that for the first time in many decades neither party in NSW used a ''devil's auction'' in which the parties compete with each other to promise more police, longer sentences and more prisoners. Also, I have been told by people in the corrections industry that the incoming O'Farrell Government quietly let it be known that their approach to justice was to be different.

A possible explanation for the different justice policies may be found in the size of their majorities. In NSW the O'Farrell Government is under no threat and may therefore not feel the need to seek further popular support by being tough on crime, whereas in Victoria the Baillieu Government has made it clear that it aims to increase jail sentences, abolish suspended sentences, and even impose statutory minimum sentences for some violent crimes.

NSW has announced that it plans to close two of its existing prisons, while Victoria is to build a new jail that will cost many millions of dollars. It seems clear that NSW is aiming to reduce its imprisonment rate ( which of the states is the second-highest) while Victoria aims to increase its rate (which is the lowest of the states).

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For the past 30 or 40 years Victoria has been the envy of all Australian states for its low imprisonment rate and hence a smaller expenditure burden for the cost of its prison system. This means that Victoria has been able to devote proportionately more of its budget to health, education and infrastructure than any other state. This position is likely to be lost if the Government intention to increase the length of prison sentences is not modified.

The most recently published data on the number of prisoners in Australia show that in March of this year Victoria had a daily average of 105.6 prisoners per 100 000 adults in the community compared with a rate of 179.3 in NSW. (At the same time the rates for the ACT and the Northern Territory were 82.1 and 738.8 respectively.)

The most important thing to note about these figures is that the differential use of imprisonment in different jurisdictions is the fact that no one has been able to demonstrate that having more people in prison makes a safer society. The crime rate in NSW is certainly not lower than the crime rate in Victoria. As a matter of fact, crime rates throughout Australia are declining, as are imprisonment rates, but public perceptions of the likelihood of becoming a victim of crime seem not to have changed.

An important part of the Victorian program to ''strengthen key elements of sentencing law'' is the Sentencing Survey published by the Herald Sun on July 27 and also available on the Department of Justice website. The Law Institute of Victoria has expressed the view that this survey is of limited value, while a senior judge of the Victorian Supreme Court said that it would not provide an accurate measure of public attitudes to sentencing. I would go further and suggest that it is of no value and is in fact quite dangerous in that it will certainly yield results that purport to show that members of the Victorian public to be much more punitive than they really are.

There are many reasons for my assessment of the survey. In the first place it is based on a self-selected sample of the population which cannot be representative of the total community. It is based on 17 so-called case studies which are biased towards extremely serious offences with no attention being given to the high-volume offences of residential burglary and motor vehicle theft.

There are many other flaws in the survey, which any first-year student of social science methods would quickly identify. Suffice to say public attitudes to sentencing can be measured accurately as shown by work done in the Crime Research Centre of the University of Western Australia, but Victoria chose not to follow this lead.

It is obviously true that a lawfully elected state government can do virtually whatever it likes with regard to crime and punishment or any other area of social policy within its constitutional authority. In that case, why should it be of any interest to us in the ACT?

The answer must be that we should maintain a watching brief over the developments in our two neighbouring jurisdictions so that we will be able to respectfully suggest to our own Government that it should not be tempted to follow the current Victorian approach which will surely waste millions of dollars and cause much misery in doing so.

Finally a prediction: it might take considerable time, perhaps five or six years, but in my opinion it is quite likely that the Victorian imprisonment rate will be greater than the NSW rate in the foreseeable future. That would be remarkable and deeply regrettable, but we will be in a box seat to see it happen.

David Biles is a consultant criminologist in Canberra and was earlier a senior lecturer in criminology at the University of Melbourne.